Post-Consumer Recycling | 3 MINUTE READ

NYC Hit With A Lawsuit Over EPS Ban

  A New York City ban on expanded polystyrene (EPS) foam packaging is set to go into effect July 1.


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A New York City ban on expanded polystyrene (EPS) foam packaging is set to go into effect July 1. It’s hard to think a city like NYC (of all places!) may soon be without the use of EPS foam foodservice packaging. 


“These products cause real environmental harm and have no place in New York City. We have better options, better alternatives, and if more cities across the country follow our lead and institute similar bans, those alternatives will soon become more plentiful and will cost less,” said Mayor Bill de Blasio back in January. “By removing nearly 30,000 tons of expanded polystyrene waste from our landfills, streets and waterways, today’s announcement is a major step towards our goal of a greener, greater New York City.”


But supporters of EPS foam packaging are not going down without a fight.


Dart Container Corp. joined with the Restaurant Action Alliance NYC, members of the recycling industry, and the city’s restaurant owners in filing a lawsuit seeking to overturn the city's ban on foam foodservice items. Mayor Bill de Blasio, the New York City Department of Sanitation, and DSNY Commissioner Kathryn Garcia are named as respondents in the petition, which was filed against the commissioner’s determination that foam cannot be recycled. The group says that determination flagrantly violated Local Law 142.


The suit, which was filed in New York Supreme Court, called the decision to ban foam “arbitrary and capricious,” and asked the Court to reverse the commissioner’s determination that foam is not recyclable and order DSNY to implement rules to recycle foam.


“We put together a plan that even the city’s recycler supported that would have removed all polystyrene foam, and not just foodservice articles, from the city’s waste stream. Our plan represented sound environmental policy, but they opted for a politically-expedient ban,” said Michael Westerfield, Dart’s director of recycling. “The City Council set forth very specific criteria for the DSNY to evaluate, and we met or exceeded every one. What we didn’t know is that City Hall had a hidden agenda that would not be swayed by facts or common sense. We are taking a stand today to protect the thousands of businesses that will suffer if this ban is allowed to stand, as well as manufacturers and recyclers who oppose this ban.”


Based on the evidence presented to the Department of Sanitation over the last year, the commissioner is statutorily required to recycle EPS, not ban it, the group said in a news release.


For instance, the group says that market demand for recycled EPS is so “robust” that a single buyer, Plastics Recycling Inc. (PRI), readily committed to purchase all of New York City’s recyclable polystyrene (both solid and foam), with a right of first refusal over other buyers. PRI further assured the commissioner that it already has “enough demand to handle a 100% recycling rate for a city five times the size of NYC.” PRI even provided the commissioner with a list of buyers. Despite that, the commissioner continues to repeat that there are “no economic markets in existence” that would purchase and recycle the city’s EPS.


As stated in the complaint, the Coalition, Dart Container and other named petitioners in the suit have asked for the Court to lift the ban on foam and require the Department of Sanitation to recycle it.


Clearly, there’s a lot of misconceptions out there regarding EPS foam and recycling. So it’s important for companies like Dart to take a stand to show the general public that EPS is recyclable and it’s happening.


For a great take on EPS recycling, be sure to check out Tony Deligo’s article on ACH Foam Technologies.